R v Nesci
[2014] VSC 67
•6 March 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0194
| THE QUEEN | |
| v | |
| SAMMY NESCI | Accused |
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JUDGE: | CROUCHER J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2014 | |
DATE OF SENTENCE: | 6 March 2014 | |
CASE MAY BE CITED AS: | R v Nesci | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 67 | |
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CRIMINAL LAW – Sentence – Possession of unregistered firearm – Brief period of possession in unusual circumstances – Early plea of guilty – Remorse – No prior convictions at age 44 – Excellent prospects of rehabilitation – Release on undertaking to be of good behaviour for 18 months, without conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr J Willis | Davis Zucco Lawyers |
HIS HONOUR:
Introduction
Sammy Nesci is charged with possessing an unregistered category A or B longarm firearm on 17 April 2013, contrary to s 6A(1) of the Firearms Act 1996 (Vic).
The Director of Public Prosecutions originally filed an indictment in this Court charging not only the possession offence but also an offence of attempting to pervert the course of justice arising out of that possession. On 7 February 2014, however, the Director withdrew the charge of attempting to pervert the course of justice by filing over a new indictment charging only the possession offence. Mr Nesci pleaded guilty and the matter was adjourned until 25 February 2014 for a plea in mitigation.
Facts giving rise to the offence
Mr D’Arcy, who appeared on behalf of the Director, tendered a written summary of the facts (Exhibit 2). In the course of opening the matter, he indicated an amendment to that summary. As amended, the summary is as follows:
Mr Nesci was born on 17 November 1969. At the time of the offence, he was 43 years of age.
On 17 April 2013, Kara Doyle was seated on a couch at her home in Military Road, Avondale Heights, when she was shot by Mehmet Torun. She was shot at a distance of less than a metre with a sawn-off 12-gauge shot-gun. Ms Doyle was placed in a car and driven to a Caltex service station in Avondale Heights where assistance was sought.
At that time, Mr Nesci happened to be at the same service station. He worked at a nearby bakery, which was the family business. He had not been involved at all in the earlier shooting and did not know any of the people present at the house where the shooting occurred. However, whilst at the service station, Mr Nesci spoke to Kirsten Smith, who had been at the house at the time of the shooting. Later, when back at the bakery, he offered to take possession of the sawn-off shot-gun. He retrieved the gun from a car, handled it with a plastic bag (to avoid leaving fingerprints) and hid it in a concealed compartment in his house above the bakery. The gun was retrieved later that day by Baki Unlu, a friend of Mr Torun who had also been at the house at the time of the shooting.
On 9 May 2013, Mr Nesci was arrested at the bakery. A search of the property was conducted and captured on video. Mr Nesci showed police where he had hidden the gun. During a subsequent interview with police, Mr Nesci admitted that he possessed the gun because he saw the distressed state that Ms Smith was in at the service station and felt sorry for her and wanted to help her. He agreed he handled the gun with plastic to avoid leaving his fingerprints on it. He agreed that he had done the wrong thing.
The gun was recovered from Ms Smith’s car. It was identified as a 12-gauge Stirling brand. The serial number had been obliterated. The gun was not registered (see Exhibit 1). Both the barrel and the butt of the gun had been reduced in length. It was able to be discharged by the usual method of applying pressure to the trigger.
Mr Willis, who appeared for Mr Nesci on the plea, explained the circumstances surrounding the offence in some more detail. Mr Nesci drove the work van to the service station to buy some cigarettes. Just before he arrived, he also happened to see two people he knew – Simon Panagidis (who worked for him at the bakery) and Seona Geddes (who was Mr Panagidis’s partner) – driving in a car. They pulled over at the service station to talk to Mr Nesci. Once there, Mr Nesci saw a female lying on the ground with a man on top of her and another man running around without a shirt. He did not know what was happening but thought it might have been a fight. He went inside the shop. As he came out, he noticed blood around. Police arrived and cordoned off the area. Soon afterwards, a black Astra arrived, with Ms Smith driving and Mr Unlu in the passenger seat. He did not know them. As Mr Nesci was now unable to get his car out, he stayed there with Ms Geddes and they got talking to Ms Smith. It is not clear how much was said at this point. Later, Mr Nesci and Ms Geddes went back to the bakery, which is only about 500 metres away. They then went back to the service station to collect Mr Panagidis’s car. On that trip, they saw Ms Smith parked behind a Coles store. She was waiting for Mr Unlu, who had been texting her. They spoke to Ms Smith. She was extremely upset and stressed. Mr Nesci asked her to come back to his bakery so that she could have something to eat and drink. Ms Smith drove her car back to the bakery and parked it at the rear. Ms Smith then told them she had the gun in her car. She was very upset and did not want anything to do with it. Mr Nesci took the gun and put it upstairs in the living area above the bakery. His intention was to keep it there until Mr Unlu arrived. He used plastic of some kind to avoid leaving fingerprints. Perhaps 40 minutes later, Mr Unlu arrived, went upstairs, collected the gun and thanked Mr Nesci for looking after it. Mr Unlu and Ms Smith then drove off.
As to why he took possession of the gun, Mr Nesci told police inter alia:
· “I swear to God, I didn’t think. You know, I helped the poor girl out” (Depositions, p 1451); and
· “I accept a firearm in my house because this poor woman was like … just – she was just shittin’ herself. She was 21 years of age, didn’t know what to do, she didn’t know if she was comin’ or goin’, sh-, what am I gonna say to you? I don’t know. … I helped a poor girl because a … I fuckin’ helped her. I don’t know why. I just helped her” (Depositions, p 1480); and
· “I did the wrong thing of getting that thing, putting it in my house. I know that. … I didn’t think” (Depositions, p 1507).
Having read the relevant parts of the depositions, I accept as accurate the summary of facts alleged by the Director. Further, whilst there are some gaps in the narrative, I also accept as accurate the additional points made by Mr Willis on the plea as well as Mr Nesci’s account in his police interview.
Maximum penalty
As this is a first offence, the maximum penalty for Mr Nesci’s offence of possessing an unregistered category A or B longarm is 120 penalty units or two years’ imprisonment (see s 6A(1) of the Firearms Act 1996 (Vic)).
Nature and gravity of the offence
An assessment of the nature and gravity of the offence is very much affected by the particular charge to which Mr Nesci has pleaded guilty. As both Mr D’Arcy and Mr Willis submitted, Mr Nesci is not to be sentenced on the basis that, by taking possession of the gun, he tried to assist another or others to cover up either the shooting or their connection with the shooting, for to do so would be to sentence him, impermissibly, on the basis that he attempted to pervert the course of justice, a charge he no longer faces. Rather, he is to be sentenced on the basis that he took possession of an unregistered gun for a brief period of time and in very unusual circumstances.
At one level, Mr Nesci’s behaviour is unfathomable. He had nothing to do with the shooting and did not know anyone connected with that incident or its aftermath. Yet he chose to offer to take, and did take, possession of the gun from Ms Smith in circumstances where he must have believed something very serious had occurred. On the other hand, as Mr Nesci explained in his interview, Ms Smith was young and frightened and he helped her. But, as Mr Nesci also accepted in his interview, it was the wrong thing to do. He should not have offered to assist Ms Smith; he should not have taken the gun. Rather, he should have contacted police. His choice, albeit made on the spur of the moment and seemingly with nothing to gain, has the consequence that he will now wear the stain of a criminal record. And all for what his counsel aptly described as a silly decision.
Mitigating factors
Balanced against Mr Nesci’s offence are the several mitigating factors on which he is entitled to rely.
Full admissions and co-operation with police: First, Mr Nesci made full admissions to and co-operated with police. He admitted that he had taken the gun; he showed police where he hid it; he explained how it was taken away again; and he admitted he did the wrong thing.
Plea of guilty: Secondly, Mr Nesci pleaded guilty to the charge, and indicated an intention to do so, at the earliest practical stage. He indicated at a committal mention hearing in the Magistrates’ Court that he would plead guilty to the charge of possessing the gun. At the committal hearing, when still facing both the attempting to pervert the course of justice charge and the possession charge, he pleaded guilty to the latter charge. In this Court, he indicated the same course in pre-trial documents. The instant the Director accepted that approach, Mr Nesci formally pleaded guilty in this Court.
Genuine remorse: Thirdly, I am satisfied that Mr Nesci is genuinely remorseful for his offence. So much is apparent from his full admissions, his early plea of guilty and his acknowledgment that he did the wrong thing.
An early plea of guilty that is attended by genuine remorse usually results in a substantial discount on sentence. Mr Nesci’s plea of guilty falls into that category and it shall attract a substantial discount.
Absence of prior convictions and presence of positively good character: Fourthly, Mr Nesci has no prior criminal history. Further, I have received a reference from Joe Gibilisco, a friend who has known Mr Nesci for 30 years; and another from his sister Connie Nesci. Both speak of a hard-working, loyal, trustworthy and honest family man devoted to his children. His sister points out that, at the time of the offence, Mr Nesci was struggling to cope with the breakdown of his relationship of 16 years, and she believes he acted out of character. He has never owned or fired guns, and has no interest in them. When regard is had to this evidence of his positively good character, the absence of prior convictions, the way he made admissions to the police and indicated from the earliest stage to plead guilty to the charge, I am satisfied that Mr Nesci’s offence is out of character.
Excellent prospects of rehabilitation: Fifthly, I am satisfied that Mr Nesci has excellent prospects of rehabilitation. There are several reasons. First, his admissions to police, his early plea of guilty, his remorse and his prior good character all suggest as much. Secondly, he had the support of his sister and her husband in Court, as well as the reference from Mr Gibilisco. Thirdly, he cares for his mother, who is not in the best of health. Fourthly, Mr Nesci has worked hard all his life, particularly in the bakery with his father who, sadly, died only in November last year, which was a loss gravely felt. Fifthly, he, along with his wife (from whom he is now estranged), has raised three children (aged 14, 13 and eight) to whom he is devoted. He has the children one week and his wife has them the other week.
Sentencing purposes
Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
In my view, general deterrence and denunciation have some role to play in the circumstances of this case. People should understand, as Mr Nesci accepts, that it is wrong to behave as he did and that criminal sanctions will be the result of such behaviour. Of course, the severity of the sanction will depend upon the particular circumstances of the offence and the particular circumstances of the individual.
Whilst specific deterrence must be given some weight, I have given it a good deal less weight than otherwise on account of Mr Nesci’s admissions, early plea of guilty, remorse, good character and excellent prospects of rehabilitation.
Those same factors compel me to the conclusion that it is very unlikely that Mr Nesci would re-offend in this way. Accordingly, I can see no need for any weight to be given to protection of the community as a sentencing purpose. If these purposes have any role to play in this case, protection of the community and just punishment will be better served by the fixing of a sentence that maximises Mr Nesci’s chances of rehabilitation.
Parsimony
Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Section 5(4) provides that a court must not impose a sentence that involves confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender. These provisions reflect the common law principle of parsimony. I have applied those principles when fixing sentence.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for the offence charged. In the area of sentencing, it is almost always difficult usefully to compare other cases, but it is even more difficult when the case at hand is such an unusual example of the offence of possession of an unregistered firearm.
Extra-curial punishment
The charge of possessing an unregistered gun can be heard in the Magistrates’ Court, and usually is heard there. It carries the sort of maximum penalty (two years’ imprisonment) that means it is rarely brought to this Court or the County Court. Of course, the only reason it has ended up in this Court is that Mr Nesci was originally charged with a more serious offence that was linked to far more serious charges against others concerning the shooting of Ms Doyle and the aftermath. Yet Mr Nesci’s criminal record will say, correctly, that he was dealt with in the Supreme Court. To my way of thinking, that is an additional form of punishment in itself. So too is the related fact that Mr Nesci’s offence forever will be linked, albeit indirectly, with the shooting of Ms Doyle.
Submissions of the parties
Mr Willis submitted that, in view of the unusual circumstances of the offence, Mr Nesci’s previous good character and the impact upon him of recording a conviction, it would be open and appropriate to impose an undertaking to be of good behaviour, without recording a conviction. On the question whether or not to impose a conviction, Mr Willis referred to the factors in s 8 of the Sentencing Act.
He also submitted that such a sentence would be consistent with those imposed on Ms Smith and Mr Unlu. Ms Smith had pleaded guilty to more serious offences – namely, assisting an offender and perjury – and had been released on an undertaking to be of good behaviour for 12 months, without conviction. Mr Willis accepted that distinguishing factors in Ms Smith’s favour were that she was younger, frightened at the time of her offences and had subsequently promised to assist the authorities. But he also submitted that Mr Nesci’s offence was less serious in terms of both its nature and his particular involvement in the offending. He pointed out that, whilst Mr Unlu had received a community corrections order, with conviction, and that he too had promised to assist the authorities, like Ms Smith, he had pleaded guilty to assisting an offender and perjury and his behaviour was more serious, and, unlike Ms Smith or Mr Nesci, he had a criminal history.
Mr D’Arcy accepted that Ms Smith and Mr Unlu were more involved in the offending than Mr Nesci, although he emphasized that they had promised to assist the authorities, which are significant matters in mitigation.
Whilst Mr D’Arcy was careful, in light of the High Court’s recent decision in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, not to put forward a sentencing range, his submission was that I would not be falling into appealable error were I to sentence in accordance with Mr Willis’s submission. Put another way, the Crown’s submission was that the disposition urged by Mr Willis was open as a matter of law.
Ms Smith and Mr Unlu were sentenced by Lasry J. Having read his Honour’s reasons for sentence, I accept Mr Willis’s submission and Mr D’Arcy’s concession that Mr Nesci’s offending was less serious than either Ms Smith’s or Mr Unlu’s offending. I also accept the Crown’s submission that the disposition urged by Mr Willis is open as a matter of law.
Sentence
In all the circumstances, I have concluded that the appropriate sentence is that Mr Nesci is to be released on an undertaking to be of good behaviour for a period of 18 months.
The remaining question is whether that order should be with or without conviction. In R v Okutgen (1982) 8 A Crim R 262, the Court of Criminal Appeal heard an appeal against a two-year gaol sentence imposed on a man who had shot another in the leg during what might be described today as an incident of road rage. Mr Okutgen was aged 40, had no prior convictions, was a person of exemplary character, had worked hard, had raised a family and had contributed to his community. In the course of his reasons for allowing the appeal and substituting a common law bond for five years, Starke J, with whom Crockett and O’Bryan JJ agreed, said inter alia this (at pp 266-267 of the report):
The first and basic matter that affects my mind in this regard is the fact that the applicant has reached maturity — and indeed, perhaps one might say middle age — without any breach of the law at all, that he has lived a decent, honourable life, that he has raised a family, that he has been in constant work while he could work and that he has engaged in community activities, particularly in respect of the migrant community. A man of this age, when first convicted, can I think call in aid his character and is entitled to ask the court to rely very strongly indeed on the fact that he is of exemplary character and has been at all times up till the moment of conviction. …
Whilst there were other factors that animated the Court’s decision (including the provocation under which Mr Okutgen acted and the fact that he had spent about five or six weeks in custody) and whilst one might expect a different sentence today for such an offence, the basic point made by Starke J about the importance of good character is surely correct.
In my view, his Honour’s remarks are equally applicable to Mr Nesci’s case. He too, at 44, is entitled to rely strongly on his previously unblemished character, hard work and devotion to family.
Thus, given the nature of the offence, Mr Nesci’s previous good character and the likely impact of recording a conviction on his social well-being, I am satisfied that it is appropriate that the sentence be imposed without conviction.
Accordingly, pursuant to s 75 of the Sentencing Act, I am satisfied that Mr Nesci is guilty of the offence of possessing an unregistered category A or B longarm and, without recording a conviction, I shall adjourn the proceedings for a period 18 months and release him upon his giving an undertaking with the following conditions attached:
1) He must appear before the Court if called upon to do so during the period of the adjournment; and
2) He must be of good behaviour during the period of the adjournment.
Upon Mr Nesci’s giving of the undertaking with those conditions, the proceedings will be adjourned until 5 September 2015. If on that date the Court is satisfied that Mr Nesci has observed the conditions of the undertaking, the charge will be dismissed without any further hearing of the proceedings. If Mr Nesci breaches any condition, he may be charged with an offence, sentenced for that offence and re-sentenced on the possession of firearm offence.
Disposal order
Finally, pursuant to s 151 of the Firearms Act 1996 (Vic), I order that the property referred to in the schedule to the draft disposal order be forfeited to the Crown.
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